When is it not required to warn an employee of poor work performance?

June 1st, 2019
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It is uncommon that, an employer dismisses an employee for poor work performance without a formal notification or reasonable opportunity to improve their performance. This may, however, happen in two circumstances, namely –

  • where the manager or a senior employee is qualified by their knowledge/experience and is capable of establishing for themselves whether or not they complied with the requirements; and
  • where the degree of professionalism is so high that any deviance from the required standards would be so serious that non-compliance would justify dismissal (see Brereton v Bateman Industrial Corporation Ltd and Others (LAC) (unreported case no JA80/99, 7-2-2002) (Zondo JP) at 49).

The Labour Relations Act

In South Africa the law differentiates between dismissal for poor performance for an ordinary employee and that of a senior manager or executive. In sch 8 of the Labour Relations Act 66 of 1995 (LRA) Code of good practice: Dismissal, in item 9, the guidelines are provided to deal with ‘cases of dismissal for poor work performance.’ These guidelines apply to ordinary employees to ensure that the later dismissal of the employee based on poor work performance is procedurally fair. Item 9 states: ‘Any person determining whether a dismissal for poor work performance is unfair should consider –

(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not –

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard.’

When the guidelines for procedural fairness are applied to a person who is a senior executive, a more flexible approach is adopted. Normally, an employer should be concerned about the employee’s poor work performance, provide the employee with a reasonable opportunity to improve their performance before considering dismissing the non-performing employee. However, these requirements do not always apply to senior managers or executives.

The Brereton case

The Labour Appeal Court (LAC) in Brereton gave guidance as to the manner in which executive-level dismissal cases should be approached. The case related to the dismissal of the manager (Mr Brereton) on the grounds that he displayed inadequate managerial ability and incompetency in his role as Executive Chairman of Batecor in particular in relation to taking effective corrective action against Computer Alliance (Pty) Ltd. The judgment focused on two situations, ‘[t]he first question to be considered is whether it is incumbent upon his employer to warn him that his performance is falling short of the standard required of him and so afford him an opportunity to rectify the position before steps are taken to terminate his employment.

It has been recognised by the courts that in respect of this requirement, … the position of a senior manager differs from that of an ordinary employee. Because of his situation and the overall view of the business which he enjoys as a result thereof, he will ordinarily be aware of the shortcomings in his performance and the adverse consequences to the business resulting therefrom. He will likewise himself appreciate the necessity to remedy the position without it being drawn to his attention by another. It would be pointless to insist upon his being warned of a situation of which he must already be fully aware’ (see Brereton at para 44 to 45). In this regard, the court was making a distinction between managers who are capable of establishing themselves, whether or not they have complied with the requirements, and an ordinary employee.

‘The second situation recognised by the courts in which the necessity for a warning may be dispensed with is where the poor performance of the officer concerned is so gross, and its consequences so serious, that it would be unfair to require the employer to suffer any further delay in terminating his employment’ (see Brereton at para 46). In this regard the court points out that the continuation of the employee in this position would prejudice the employer and possibly lead to more harm to the employer than is necessary.

Conclusion

Though it may be uncommon to dismiss an employee without a notification of their poor work performance, as far as possible an employer is entitled to dismiss such an employee without any fair hearing or formal inquiry. Therefore, the duty lies with the senior manager or executive that they are qualified, have the knowledge and experience and is capable of establishing whether or not they complied with the requirements. Typically, as a senior manager or executive, the standard of professionalism is so high, that any deviance from the required standards would be so serious that it could lead to a dismissal.

Petrus Khumalo LLB (UP) is a candidate legal practitioner at SchoemanLaw Inc in Cape Town.

This article was first published in De Rebus in 2019 (June) DR 6.